FILED

United States Court of Appeals

Tenth Circuit

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

March 19, 2009

Elisabeth A. Shumaker
Clerk of Court

JOHN NICHOLAS, individually and

as successor in interest to the Estate of
Demetrios John Nicholas; BRENDA
NICHOLAS, individually and as
successor in interest to the Estate of
Demetrios John Nicholas,
Plaintiffs - Appellants,
v.

No. 07-1444
(D. Colorado)

RICHARD M. BOYD; ROBERT

ALLEN; HAROLD CHEUVRONT;
ROBERT FRANCISCO,

(D.C. No. 1:05-CV-02064-REB-MEH)

Defendants - Appellees.

ORDER AND JUDGMENT *

Before KELLY, LUCERO, and MURPHY, Circuit Judges.

I.

Introduction
Plaintiffs-appellants John and Brenda Nicholas initiated this action

pursuant to 42 U.S.C. 1983, asserting a violation of their right of access to the

This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.

courts. Defendants-appellees are various employees of the Colorado School of

Mines (CSM). Plaintiffs son, Demetrios Rio Nicholas, was a freshman at
CSM when he was discovered dead in the shower of his dorm suite. CSM
concluded Rios death was a self-induced drug overdose, but Plaintiffs suspect he
was the victim of a wrongful death. They alleged Defendants intentionally
covered up evidence suggesting Rio was the victim of a homicide. Plaintiffs
further alleged crucial evidence was destroyed or tampered with by Defendants
and it is now impossible for them to bring a viable wrongful death claim against
the individual(s) responsible for Rios death. Defendants moved for summary
judgment based upon, inter alia, the statute of limitations, and the district court
granted the motion. Assuming, without deciding, that Plaintiffs state a viable
cause of action, we hold the action is barred by Colorados two year statute of
limitations because the action was commenced more than two years after
Plaintiffs had knowledge of nearly all the facts relied upon in their amended
complaint. We therefore AFFIRM the decision of the district court.
II.

Background
Rio Nicholas was a freshman at CSM in the fall of 2001. In the early

morning hours of December 6, 2001, Rio was found dead in the shower of his
dorm suite. Rio had a needle mark on his arm and a capped, used syringe was on
the shower floor. The CSM police report stated Rio was already dead when the
police arrived. The campus police closed their investigation the following day
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after the investigator from the county coroners office concluded the death was a
cocaine overdose.
Plaintiffs suspected the death was not accidental. When Rios body was
discovered, there were bloody abrasions on his knuckles and the toes of one foot.
His forehead was discolored. The mortician preparing the body for burial also
noted bruising on his chin and indelible grid-shaped marks on the left side of his
face. Plaintiffs were wary of Rios roommate, Brandon Reese, who had first
discovered Rios body and who was arrested by CSM police in early 2002 for
possession of drugs. When Rio was home for Thanksgiving, he had described
Reese and Reeses friends as dirty.
At the suggestion of Rios ROTC officer, who thought the death was
suspicious, Plaintiff John Nicholas read the CSM police report in January 2002.
The report raised further concerns in his mind. The report described two
additional used syringes in the dorm rooms trash can, suggesting to John that
multiple people were using drugs because Rio had but one puncture mark on his
arm. Rios jeans were on the floor of the bathroom and the pockets contained
only cocaine and syringe packaging, raising questions in Johns mind about
whether the jeans had been planted. The police found ninety-two syringes in
Rios backpack, which John also found suspicious.
In January and February of 2002, Plaintiffs contacted and met with various
CSM officials to express their concerns about CSMs official explanation of Rios
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death. They also contacted Rios instructors, his friends on campus, and the
coroners office. In February 2002, CSM promised it would retain a private
investigator to investigate the matter. Plaintiffs soon learned, however, that CSM
did not in fact hire a private investigator but instead instructed the campus police
to conduct another investigation. Still unsatisfied with CSMs handling of the
matter, Plaintiffs contacted an attorney in the summer of 2002 to help find out
what had happened to Rio. The attorney, Michael Hinton, hired two investigators
and put Plaintiffs in touch with a third investigator. John Nicholas testified that
CSM imposed various roadblocks to hinder Edmond Martin, one of the
investigators.
The investigators hired by Plaintiffs in 2002 interviewed witnesses,
communicated with county officials, and reviewed official documents. In March
of 2003, Edmond Martins firm, Sage Investigations, released to Hinton a Final
Report (Sage Report) on Rios death. John Nicholas testified he reviewed the
report after it was completed.
The Sage Report contained, among other things, a detailed examination of
the facts and circumstances surrounding Rios death and concluded questions
still exist about the death of Rio Nicholas. The Report listed numerous
inconsistencies with CSMs official explanation. The Report also identified
numerous problems with how the campus police handled the matter. These
problems included the failure to secure the dorm suite where the body was found
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and preserve it as a crime scene, the failure to adequately examine Rios body for
evidence, the failure to preserve the syringes found in Rios apartment or examine
them for fingerprints and blood residue, and the failure to adequately interview
material witnesses.
The Sage Report stopped short of alleging the campus police intentionally
mishandled the investigation. It did allege the police prejudged the situation.
It also alleged one police officer, Sargeant Allen, was prejudiced against Rio
because Allen had been in the Air Force and he thought Rio was a poor candidate
for Air Force ROTC in light of his tattoos and piercings. The report also
questioned whether the campus police were biased in favor of Brandon Reese
because he had worked for the department as a dispatcher. Finally, the Sage
Report alleged the supplemental police investigation conducted at the Nicholass
urging was primarily concerned with identifying the source of the drugs for the
benefit of the local drug task force.
Martin sent a version of the Sage Report to the Jefferson County District
Attorneys Office. The district attorneys office had conducted an investigation
in the spring of 2002 that accepted the findings of the campus police. On May 6
and May 7, 2003, Brenda and John Nicholas wrote separate letters to the District
Attorney requesting a new investigation. The letters indicated Plaintiffs belief
that Rios death was not a self-induced, unattended drug overdose. The letters

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also indicated Plaintiffs believed they had been intentionally misled by the CSM
police.
Following Plaintiffs renewed pleas for help, the district attorneys office
looked into the case again. Plaintiffs were ultimately dissatisfied with this
investigation because the district attorneys office declined to perform various
forensic tests requested by Plaintiffs. Plaintiffs provided the Sage Report to a
medical expert, Dr. Joseph Batuello, who, in April of 2005, sent a letter to one of
Plaintiffs attorneys with various observations regarding Rios death. Dr.
Batuello believed the amount of cocaine found in Rios body was consistent with
a cocaine overdose, but found it highly unlikely that Rio used more than one
syringe. Dr. Batuello also stated that without a carefully conducted autopsy it
was impossible to rule out trauma, asphyxiation, or poisoning as possible causes
of death. Finally, Dr. Batuello observed that the blood on the wall of the shower
likely did not come from the abrasions on Rios hands and feet, because the blood
vessels in extremities are too small to deposit blood on a surface not in contact
with the wound. In June of 2005, Dr. Linda Norton, a former medical examiner,
reviewed the Sage Report and drafted a one-page opinion concluding Rio was in a
group setting when he was injected with a lethal dose of cocaine, his body was
subsequently moved into a shower stall, and evidence was planted in an attempt
to cover up what had occurred.

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Plaintiffs also obtained samples of Rios blood and urine from the coroners
office. They submitted the samples to a laboratory for testing and in August of
2005 Plaintiffs learned the lab results. The lab results indicated Rio had far less
cocaine and cocaine metabolites in his blood than had originally been reported. A
consultant, Earnest Street, opined that based upon these lab results, Rio did not
die of a cocaine overdose.
On October 19, 2005, John and Brenda Nicholas filed suit against Richard
M. Boyd, the Chief of Police and Director of Public Safety for CSM; Robert
Allen, a sergeant in the CSM police department; Harold Cheuvront, a dean at
CSM; and Bob Francisco, another CSM employee. The complaint set forth claims
of denial of access to the courts and conspiracy to deny access to the courts. 1 The
claims were brought under 42 U.S.C. 1983. The plaintiffs identified the right of
access to the courts as a right guaranteed by Article IV of the Constitution, the
First and Fourteenth Amendments, and the Civil Rights Act of 1971.
The amended complaint alleged a number of facts suggesting Rios death
was not an accidental, self-induced drug overdose. These facts are: Rios body
was found in an upright seated position with his legs crossed; he had discoloration
in his face and forehead and a grid-shaped imprint on his face, suggesting he died
with his head on the floor; blood was smeared on the shower wall, suggesting an
open wound on Rios head or torso; Rio made statements when he was home
1

Plaintiffs have abandoned their conspiracy claim on appeal.

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during Thanksgiving that Reese and Reeses friends were dirty people and that
Rio was being stalked by a CSM student; there were abrasions on Rios body and
bruises on his hands and feet which suggested his body was moved after he was
incapacitated; the syringe in the shower was capped, and Rio was unlikely to have
capped the syringe after injecting a lethal amount of cocaine; when another
roommate came upon Rios dead body, Reese was already present and holding the
capped syringe in his hand; Rio had only one puncture wound, but there were
three used syringes found in the dorm room; the only items in the pockets of the
jeans found in the bathroom were drug paraphernalia; Rios bed was made and
covered with school items, suggesting Rio had not slept in it the night of his
death; Reese changed his story of why Rio took a shower; Philip Javernick,
another CSM student who had Rios name tattooed on his body, 2 purchased
cocaine the day before Rios death and left CSM shortly after Rios death without
returning; Javernick and Reese gave an alibi regarding their whereabouts the night
Rio died that was contradicted by eyewitnesses; and Rios backpack was open
when his body was discovered, but when police retrieved the backpack the next
day it was padlocked shut and contained ninety-two syringes.

Some students told investigators Javernick got the tattoo after Rio died,
but another witness said when Rio was home for Thanksgiving he had mentioned
a stalker with Rios name tattooed on his body.
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After discovery, Defendants moved for summary judgment on two grounds:

the statute of limitations and qualified immunity. The district court granted
summary judgment based upon the statute of limitations.
III.

Discussion
This court reviews a grant of summary judgment de novo, applying the

same standards as the district court. ACLU v. Santillanes, 546 F.3d 1313, 1317
(10th Cir. 2008). Summary judgment is appropriate when there is no genuine
issue of material fact and the movant is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c). Facts are viewed in the light most favorable to the
nonmoving party. Santillanes, 546 F.3d at 1317.
Plaintiffs seek relief pursuant to 42 U.S.C. 1983. The applicable statute
of limitations in 1983 actions is generally the residual statute of limitations for
personal injury actions in the forum state. Owens v. Okure, 488 U.S. 235, 249-50
(1989). In Colorado, the applicable statute of limitations is two years. Colo.
Rev. Stat. 13-80-102(1)(i); Blake v. Dickason, 997 F.2d 749, 750-51 (10th Cir.
1993).
Although Colorado law supplies the applicable statute of limitations,
federal law governs the accrual of a federal cause of action. Smith v. City of
Enid, 149 F.3d 1151, 1154 (10th Cir. 1998). A civil rights action accrues when
the plaintiff knows or has reason to know of the injury which is the basis of the
action. Id. (quotation omitted). Claims under 1983 assert a violation of a
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federal right, and therefore such claims accrue when the plaintiffs know or should
know their rights have been violated. Id. A plaintiff need not have conclusive
evidence of the cause of an injury in order to trigger the statute of limitations.
Alexander v. Okla., 382 F.3d 1206, 1216 (10th Cir. 2004). Nor must a plaintiff
know all of the evidence ultimately relied on for the cause of action to accrue.
Baker v. Bd. of Regents, 991 F.2d 628, 632 (10th Cir. 1993). A civil rights
action accrues when facts that would support a cause of action are or should be
apparent. Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995) (quotation
omitted). The test is an objective one, with the focus on whether the plaintiff
knew of facts that would put a reasonable person on notice that wrongful conduct
caused the harm. Alexander, 382 F.3d at 1216.
For the purpose of evaluating the statute of limitations defense, this court
assumes, without deciding, the amended complaint makes out a viable claim for
denial of access to the courts. 3 A claim for denial of access to the courts is
3

Defendants assert the Tenth Circuit has never recognized the type of denial
of access to the courts claim being asserted by Plaintiffs, and they are therefore
entitled to qualified immunity. See Jennings v. City of Stillwater, 383 F.3d 1199,
1207 (10th Cir. 2004) (stating the Tenth Circuit has not recognized a claim of
denial of access to the courts for a police cover-up); Wilson v. Meeks, 52 F.3d
1547, 1557 (10th Cir. 1995) (stating Tenth Circuit precedent did not clearly
establish a duty to avoid a police cover-up, but not resolving the question). But
see Donohue v. Hoey, 109 F. Appx 340, 356-57 (10th Cir. 2004) (stating
intentional destruction of evidence can constitute a violation of the right of access
to the courts); Stump v. Gates, No. 92-1134, 1993 WL 33875, at *2-3 (10th Cir.
Feb. 11, 1993) (holding police department employees are not entitled to qualified
immunity to claim that deliberate failure to investigate and quick destruction of
(continued...)
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ancillary to some underlying state or federal action. Christopher v. Harbury, 536

U.S. 403, 415 (2002). Plaintiffs claim Rio was the victim of a wrongful death.
For Plaintiffs to bring a wrongful death action under Colorado law, they must
prove Rio was fatally injured by a wrongful act, neglect, or default of another.
Colo. Rev. Stat. Ann. 13-21-202. Plaintiffs assert it is now impossible to prove
Rio died due to the wrongful acts of another person because the Defendants
intentional acts deprived them of the necessary evidence to do so. Therefore, the
claim for denial of access to the courts accrued when Plaintiffs knew, or should
have known, the acts of Defendants deprived them of evidence necessary to bring
a wrongful death action.
The district court concluded that, at the latest, the statute of limitations
began to run on May 7, 2003, when John Nicholas mailed a letter to the Jefferson
County District Attorneys Office with allegations of foul play and police
misconduct in connection with Rios death. Because the test for accrual of the
statute of limitations is objective, see Alexander, 382 F.3d at 1216, the contents
of John and Brendas letters to the District Attorney are only relevant insofar as
they reveal what facts were known, not for the beliefs or suspicions they contain.
The letters sent in May 2003 do mention some of the facts relied upon in the
3

(...continued)
evidence that might have proved homicide was a violation of [plaintiffs] right of
access to the courts). This court need not rule on the question because, even if
Plaintiffs have a cognizable claim, it is barred by the applicable statute of
limitations.
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amended complaint. More relevant to the question of the extent of Plaintiffs

knowledge, however, is the Sage Report, which John Nicholas testified he
reviewed in the spring of 2003. The Sage Report contains nearly all of the facts
contained in the amended complaint. It contains synopses of Rios conversations
with family and friends in Texas over Thanksgiving; the changes in Reeses story;
Javernicks purchase of cocaine; the eyewitness testimony refuting Reeses and
Javernicks alibi; details regarding the position and appearance of Rios body; and
discussions about the evidence in the dorm room, including the extra syringes, the
jeans, and the backpack.
Only one fact relied upon in the amended complaint is absent from the Sage
Report: the fact that the syringe in the shower was capped. This fact was in a
police report filed by the Golden Police Department, which was obtained by
Plaintiffs investigator. The record does not indicate whether this police report
was appended in its entirety to the Sage Report, and therefore it is unclear when
Plaintiffs learned of this fact. Even if Plaintiffs learned of the cap on the syringe
at some later date, however, the Sage Report still contained nearly all of the facts
underpinning the Plaintiffs theory, set out in the amended complaint, that Rios
death was wrongful. The statute of limitations may begin to accrue before a party
has all the evidence supporting its case. Baker, 991 F.2d at 632. It begins to run
when the plaintiff knows facts sufficient to support a cause of action. Fratus, 49
F.3d at 675. Based upon the facts in the Sage Report, Plaintiffs could have
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drafted a complaint in the spring of 2003 nearly identical to the amended

complaint filed over two years later.
The only information identified by Plaintiffs which they received after the
spring of 2003 is from Dr. Batuellos letter, Dr. Nortons draft opinion, and the
toxicology lab results. Plaintiffs claim they only had a sufficient factual basis to
proceed on their denial of access to the courts claim once they received these
communications. In particular, they assert they did not earlier know Rios death
was wrongful. Plaintiffs do not assert they learned of any new police misconduct
after the spring of 2003.
As an initial matter, two of the three communications Plaintiffs received
after the spring of 2003 were the opinions of experts based entirely upon facts
contained in the Sage Report and known to Plaintiffs in the spring of 2003. The
only genuinely new information Plaintiffs learned after the spring of 2003 was the
lab results reported in August 2005. The lab results, if believed, strengthened the
hypothesis that the cause of death was not a cocaine overdose. They were not,
however, the crux of Plaintiffs case that Rios death may have been wrongful. In
fact, the lab results are not even mentioned in the amended complaint, which lists
a drug overdose as a possible cause of death. 4 In the amended complaint,
Plaintiffs alleged the position and appearance of Rios body, as well as the
suspicious placement of drug paraphernalia in the dorm suite, gave Defendants
4

The lab results were referenced in the original complaint.

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reasonable cause to believe that probable cause existed to commence a homicide

investigation. The lab results may have strengthened the claim that the official
explanation of Rios death was incomplete, but the statute of limitations may
begin to run before all the evidence in a case is collected. Baker, 991 F.2d at 632
(holding the statute of limitations begins to run when a plaintiff knows or should
know of the injury). The amended complaint is based almost entirely upon facts
present in the Sage Report and therefore known to Plaintiffs no later than the
spring of 2003. Based on the facts known to Plaintiffs in the spring of 2003, they
knew or should have known of the injury they alleged in their complaint. 5
Plaintiffs also argue the statute of limitations question involves disputed
issues of fact and was thus inappropriately resolved at the summary judgment
stage. They cite to numerous cases from federal and state court for the
proposition that the reasonable diligence of a plaintiff in discovering information
giving rise to a cause of action is a question of fact. This case, however, is not
about reasonable diligence. Regardless of whether it was reasonable to conduct
their own investigation, Plaintiffs did so, and thereby gained actual knowledge of
5

Plaintiffs rely heavily upon Stump v. Gates, 777 F. Supp. 808 (D. Colo.
1991), affd, 986 F.2d 1429 (10th Cir. 1993) in arguing the statute of limitations
has not expired. Stump is distinguishable. In that case, the plaintiffs never
performed their own investigation into the death of their father, and the district
court concluded they were under no duty to do so to avoid the expiration of the
statute of limitations. Id. at 822. Here, whether they had a duty to do so or not,
Plaintiffs did in fact undertake their own investigation into the death of their son.
Because they had knowledge of the injury they allege in the spring of 2003, the
statute of limitations began to accrue no later than that time.
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the facts underlying their claim. It was therefore proper for the district court to
resolve the statute of limitations question at the summary judgment stage.
Finally, Plaintiffs argue the statute of limitations question is inextricably
tied to the ultimate factual question of whether Rios death was wrongful.
Because the wrongfulness of Rios death is a question of fact, Plaintiffs argue, so
too is the question of when they knew the death was wrongful. This argument,
however, is premised on a fundamental misunderstanding of the statute of
limitations inquiry. In determining whether the statute of limitations has expired,
a court considers when the plaintiff knew or should have known the facts
supporting the claim. Fratus, 49 F.3d at 675. Here, the complaint is almost
entirely supported by facts known to the plaintiffs more than two years before
they filed suit. It requires no resolution of the ultimate merits of the case to
conclude that a suit based upon facts known for more than two years is barred by
a two-year statute of limitations.
IV.

Conclusion
Because the factual allegations in the amended complaint were nearly all

known to Plaintiffs over two years prior to the filing of their suit, the suit is

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barred by the two-year statute of limitations. The judgment of the district court is
hereby AFFIRMED.
ENTERED FOR THE COURT

Michael R. Murphy
Circuit Judge

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07-1444, Nicholas v. Boyd

LUCERO, J., concurring in the judgment.
I respectfully disagree with my colleagues analysis of the statute of
limitations issue, which, in my view, falters for two reasons. First, the majority
inquires solely into the plaintiffs knowledge of official misconduct while failing
to examine whether the plaintiffs knew they had an arguable wrongful death
claim, an element of an access to courts cause of action. Second, the majority
analyzes the plaintiffs subjective knowledge of the facts alleged in their
complaint without asking whether, in addition, those facts should have put them
on notice of their right to sue. Yet because I conclude that qualified immunity is
available to the defendants, I would affirm on these alternative grounds.
The majority first concludes that the claim for denial of access to the
courts accrued when Plaintiffs knew, or should have known, the acts of
Defendants deprived them of evidence necessary to bring a wrongful death
action. Majority Op. at 11 (emphasis added). In light of the Supreme Courts
holding in Christopher v. Harbury, 536 U.S. 403, 415 (2002), however, this
cannot be the entire inquiry. In Christopher, the Court assumed that the right of
access to courts can be violated due to official interference with the opportunity
to seek relief and held that the existence of such an opportunity is an element
that must be described in the complaint. 1 Id. Specifically, the plaintiff must

I agree with my colleagues that it is unclear in our circuit whether such a

(continued...)

identify a nonfrivolous, arguable underlying claim. Id. (quotation omitted). If

the existence of an underlying wrongful death claim is an element of the
constitutional violation, surely a plaintiffs access to courts claim cannot accrue
until she knows, or should know, of the arguable underlying claim. 2 Thus, the
majoritys exclusive focus on the plaintiffs knowledge of official misconduct
misses the mark.
As for my second point of disagreement, the majority reasons that
[b]ecause the factual allegations in the amended complaint were nearly all
known to Plaintiffs over two years prior to the filing of their suit, the suit is
barred by the two-year statute of limitations. Majority Op. at 15-16. This
statement erroneously focuses on the plaintiffs knowledge of those facts pleaded
in the complaint. Yet plaintiffs knowledge of the facts in the complaint is
dispositive only if those facts were sufficient to put a reasonable person on notice
of the injury that underlies the cause of action. See Alexander v. Oklahoma, 382
F.3d 1206, 1216 (10th Cir. 2004) (using an objective test to determine when a
1

(...continued)
constitutional claim exists. See Majority Op. at 10-11 n.3.
2

It is very much an open question what a plaintiff must allege to identify

a nonfrivolous, arguable wrongful death claim. See Christopher, 536 U.S. at
415. Because the very misconduct that plaintiffs seek to challenge will often
prevent them from knowing enough to actually file a wrongful death claim,
presumably they need not identify the underlying wrongful death claim with the
same specificity we would require for such a claim to survive a motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6). Because I would resolve this
case on qualified immunity grounds, I leave this question for another day.
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federal cause of action accrues). By narrowly focusing on plaintiffs knowledge

of the facts alleged in the amended complaint without inquiring whether those
facts would have put a reasonable person on notice of a constitutional violation,
the majority risks transforming an objective inquiry into a subjective one.
As noted, I would affirm the grant of summary judgment, but on alternative
grounds. Our law is anything but clearly established regarding the existence and
contours of a 1983 access to courts claim based upon official destruction of
evidence or investigatory failures. See Majority Op. at 10-11 n.3. Pearson v.
Callahan, recently decided by the Supreme Court, allows a court to grant qualified
immunity without deciding whether a violation occurred when the right claimed
to have been violated was not clearly established. 129 S. Ct. 808, 818 (2009)
(reasoning that in cases where it is far from obvious that a right exists, it may
be appropriate not to decide whether there has been a violation). This factintensive case, premised on a constitutional claim of unclear viability, would best
be handled in that fashion.
For the foregoing reasons, I concur in the judgment of my respected
colleagues.

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